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COURT OF APPEALS DECISION DATED AND RELEASED October 8, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2713
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
CITY OF WEST ALLIS,
Plaintiff-Respondent,
v.
C. SCOTT RADTKE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
BONNIE L. GORDON, Judge. Affirmed.
CURLEY, J. C.
Scott Radtke appeals from a judgment of conviction, on a no contest plea, for
operating a motor vehicle while under the influence of an intoxicant. He argues that § 343.12(2)(d), Stats., which will require the
Department of Transportation to suspend his school bus operator's license upon
his conviction for operating a motor vehicle while under the influence of an
intoxicant, violates the equal protection, cruel and unusual punishment, and
due process provisions of the federal and Wisconsin Constitutions.[1] This court rejects his arguments and affirms
the judgment of conviction.[2]
I.
Background.
City of West Allis
police arrested Radtke for operating his motor vehicle while under the
influence of an intoxicant. Subsequent
to the arrest, Police Officer David Hoffman asked Radtke to submit to a
chemical breath test. Radtke took the
test, with the result being above the legal limit. Prior to asking Radtke to submit to the test, Officer Hoffman
read the information in Section A of the “Informing the Accused” form to
Radtke. He did not read the commercial
license Section B of the form, although Radtke was licensed as a commercial
school bus driver.
Radtke moved the trial
court to suppress the breath test results, raising several constitutional
challenges, and challenging Officer Hoffman's failure to read the entire
“Informing the Accused” form to him.
The trial court rejected Radtke's arguments to declare
§ 343.12(2)(d), Stats., unconstitutional,
and further denied the motion to suppress the chemical test results. Radtke then pleaded no contest to the
offense of operating a motor vehicle while under the influence of an
intoxicant. The trial court then
entered the judgment of conviction and this appeal follows.
II.
Analysis.
Radtke first argues that
§ 343.12(2)(d), Stats.,
violates the equal protection provisions of the federal and state constitutions
because it discriminates “between those individuals who hold passenger
endorsements to their Commercial Driver's License ... and those individuals who
do not hold such a designation.” Radtke
is incorrect.
This court's analysis
begins with the presumption that § 343.12(2)(d), Stats., is constitutional and that it must be upheld unless
it is proven unconstitutional beyond a reasonable doubt. See Libertarian Party of
Wisconsin v. State, 199 Wis.2d 791, 802, 546 N.W.2d 424, 430 (1996)
(constitutionality of statutes). The
Wisconsin Supreme Court has held that Article I, Section 1 of the Wisconsin
Constitution is substantially equivalent to the equal protection provisions of
the Fourteenth Amendment. GTE
Sprint Communications Corp. v. Wisconsin Bell, Inc., 155 Wis.2d 184,
193, 454 N.W.2d 797, 801 (1990) (stating the equal protection clauses of the
Wisconsin and United States Constitutions are substantially similar).
Unless a challenge to a
statute affects a person's fundamental right or creates a classification based
on a suspect class, this court uses the “rational basis test” in determining
whether the regulation withstands an equal protection challenge. See Szarzynski v. YMCA, Camp
Minikani, 184 Wis.2d 875, 886, 517 N.W.2d 135, 139 (1994). Radtke agrees that the “rational basis test”
is the appropriate standard to use in this case. Under the “rational basis test,” this court must uphold a
legislative classification if any reasonable basis exists to justify that
classification. To decide if there is
any reasonable basis, the court is obligated to find or construct, if possible,
a rationale that might have influenced the legislature and that reasonably
upholds legislative determinations. K.C.
v. DHSS, 142 Wis.2d 906, 916, 420 N.W.2d 37, 40 (1988).
The trial court
concluded that the legislature, in barring school bus drivers convicted of
operating a motor vehicle while under the influence of an intoxicant from being
issued a commercial driver's license, was “expressing a public policy that
school children and the public at large should be protected from drivers who
have abused their driving privileges.
The trial court is correct—the legislature could rationally distinguish
between school bus drivers and other drivers based on a legitimate interest in
protecting children from harm while being transported on school buses. There is no equal protection violation here.
Radtke next argues that
§ 343.12(2)(d), Stats.,
violates the federal and state constitutions' prohibition against cruel and
unusual punishment. He contends that
the statute “[e]ffectively eliminat[es] an individual's employment, and thus,
means of support, when all other classes of individuals are not subject to the
same harsh treatment.” His argument is
specious.
This court's standard
for determining whether a punishment constitutes cruel and unusual punishment
is whether the punishment is “`so excessive and usual, and so disproportionate
to the offense committed, as to shock public sentiment and violate the judgment
of reasonable people concerning what is right and proper under the
circumstances.'” Steeno v. State,
85 Wis.2d 663, 669, 271 N.W.2d 396, 399 (1978) (citation omitted). The trial court concluded that the license
suspension under § 343.12(2)(d), Stats.,
is an administrative sanction rather than a criminal sentence. Hence, the granting of a commercial license
is a privilege, not an inherent right. See,
e.g., State v. Seraphine, 266 Wis. 118, 123, 62 N.W.2d 403,
406 (1954). The trial court was
correct—there is no cruel and unusual punishment here.
Finally, Radtke raises
several hypothetical due process claims, arguing that the police officer's
failure to read him the entire “Informing the Accused” form requires, at a
minimum, the suppression of the chemical breath test results. He is incorrect.
In State v.
Geraldson, 176 Wis.2d 487, 491‑95, 500 N.W.2d 415, 418‑19
(Ct. App. 1993), we concluded that a commercial driver was entitled to receive
the implied consent law's commercial vehicle warnings. In State v. Zielke, 137 Wis.2d
39, 41, 403 N.W.2d 427, 428 (1987), the supreme court concluded that the
police's failure to comply with the informed consent procedure does not require
suppression of constitutionally obtained chemical test evidence. The informed consent law creates a separate
offense “`that is triggered upon a driver's refusal to submit to a chemical test.'” County of Eau Claire v. Resler,
151 Wis.2d 645, 652, 446 N.W.2d 72, 74 (Ct. App. 1989). Therefore, while the failure to properly
inform a suspect under the informed consent provisions may prevent the fact of
the suspect's refusal being introduced at a refusal hearing, it does not
prevent the use of the chemical test results at a trial on a separate charge of
operating a motor vehicle while under the influence of an intoxicant. Zielke, 137 Wis.2d at 51, 403
N.W.2d at 432. Following the
conclusions of these cases, the trial court rejected Radtke's due process
arguments. The trial court was
correct—there was no due process violation here. Further, Radtke's remaining due process claims, based on ex
post facto considerations, are merely hypothetical situations which never
came to pass. Thus, they are moot.
In sum, this court
rejects all of Radtke's arguments. The
judgment of conviction is affirmed.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.
[1] Section 342.12(2)(d),
Stats., provides:
(2) The
department shall issue a school bus endorsement to a person only if such person
meets all of the following requirements:
....
(d) Notwithstanding ss. 111.321, 111.322 and 111.335, has not been convicted of reckless driving under s. 346.62 or a local ordinance in conformity with s. 346.62(2) or a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.62(2), operating a motor vehicle while operating privileges are suspended or revoked under s. 343.44(1) or a local ordinance in conformity therewith or a law of a federally recognized American Indian tribe or band in this state in conformity with s. 343.44(1) with respect to operation of a motor vehicle while operating privileges are suspended or revoked, any of the offenses enumerated under s. 343.31(1) or (2), or 2 or more offenses under s. 346.63(7) or a local ordinance in conformity therewith or a law of a federally recognized American Indian tribe or band in this state in conformity with s. 346.63(7), or a conviction under the law of another jurisdiction, as those terms are defined in s. 340.01(9r) and (41m), respectively, prohibiting reckless or careless driving, as those or substantially similar terms are used in that jurisdiction's laws, or a conviction, suspension or revocation that would be counted under s. 343.307(2), within the 2-year period immediately preceding the date of application. Upon request of the operator or school, the department shall certify whether the operator meets this requirement.